Citation Nr: 1814202
Decision Date: 03/06/18 Archive Date: 03/14/18
DOCKET NO. 13-34 169 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan
THE ISSUES
1. Entitlement to an increased disability evaluation for degenerative arthritis of the cervical spine, rated as 10 percent disabling, for the period prior to December 22, 2016.
2. Entitlement to an increased disability evaluation for degenerative arthritis of the cervical spine, rated as 20 percent disabling from December 22, 2016.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The Appellant
ATTORNEY FOR THE BOARD
Hallie E. Brokowsky, Counsel
INTRODUCTION
The Veteran served on active duty in the U.S. Navy from August 1989 to September 1993.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.
The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in October 2015. A transcript of that hearing has been associated with the claims file.
These matters were previously before the Board in June 2016 and August 2017, wherein the Veteran's claims were remanded for additional development and due process considerations. A supplemental statement of the case was most recently issue in November 2017. The case was returned to the Board for appellate consideration.
A March 2017 rating decision granted the Veteran an increased, 20 percent disability rating for his degenerative arthritis of the cervical spine, effective December 22, 2016. As the Veteran has not been granted the maximum benefit allowed, the claims for increased disability ratings remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993).
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014).
FINDING OF FACT
Degenerative arthritis of the cervical spine manifested by pain, tenderness, and spasm, but without guarding productive of abnormal gait and spinal contour. The combined range of motion of the cervical spine is greater than 170 degrees. Forward flexion is 30 degrees.
CONCLUSIONS OF LAW
1. The criteria for a disability rating of 20 percent, but no higher, for degenerative arthritis of the cervical spine have been met for the rating period prior to December 22, 2016. 38 U.S.C. §§ 1155 , 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5235 to 5243 (2017).
2. The criteria for a disability rating in excess of 20 percent for degenerative arthritis of the cervical spine have not been met for any part of the appeal period. 38 U.S.C. §§ 1155 , 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5235 to 5243 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSIONS
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159 (b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006).
In this case, the agency of original jurisdiction (AOJ) issued notice letters to the Veteran. These letters explained the evidence necessary to substantiate the Veteran's initial claim of entitlement to service connection, and the downstream claims for increased disability evaluations, as well as the legal criteria for entitlement to such benefits. The letters also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004).
VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4).
The claims file contains the Veteran's available service treatment records, reports of post-service treatment, and the Veteran's own statements in support of his claims. The Veteran was afforded VA examinations responsive to the claims for increased ratings. The examination reports contain all the findings needed to rate the Veteran's service-connected disability on appeal, including history and clinical evaluation. See 38 C.F.R. § 3.327(a) (2017); Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007). The Board notes that the most recent examination complied with the factors outlined in 38 C.F.R. § 4.59 and Correia v. McDonald, 28 Vet. App. 158 (2016), to the extent feasible.
The Board also observes that the undersigned VLJ, at the Veteran's October 2015 hearing, explained the concept of an increased disability evaluation, as well as explained the evaluation process. Potential evidentiary defects were identified and the file was left open to provide an opportunity to submit additional evidence. The actions of the VLJ supplement VCAA and comply with 38 C.F.R. § 3.103.
The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims. For these reasons, the Board finds that the VCAA duties to notify and assist have been met.
Disability Evaluation
Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3.
Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the service-connected disability on appeal has not materially changed and a uniform evaluation is warranted for the rating period on appeal.
In addition, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59.
The Veteran was initially assigned a 10 percent disability rating for his degenerative arthritis of the cervical spine pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5003. As previously discussed, in a March 2017 rating decision, the Veteran was assigned a 20 percent disability rating, effective December 22, 2016, for his degenerative arthritis of the cervical spine; at that time, the Veteran was rated pursuant to 38 C.F.R. § 5003-5242. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2017).
Diagnostic Code 5003 provides that degenerative arthritis substantiated by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion. A 20 percent evaluation is warranted for x-ray evidence of involvement of 2 or more major or minor joints, with occasional incapacitating exacerbations. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. However, the Veteran has not reported experiencing any incapacitating exacerbations with regard to his cervical spine.
Lumbosacral and cervical spine disabilities are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine ("general rating formula"). 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5242. Intervertebral disc syndrome (IVDS) is rated under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.71a, Diagnostic Code 5243.
The Formula for Rating IVDS Based on Incapacitating Episodes provides for ratings from 10 to 60 percent based on the frequency and duration of incapacitating episodes, defined in Note 1 as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The maximum 60 percent schedular rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the previous 12 months.
The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note 1 provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note 2 provides that, for VA compensation purposes, the combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. Note 4 provides that range of motion measurements are to be rounded to the nearest five degrees. Note 5 defines unfavorable ankylosis as a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note 6 provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.
According to the general rating formula, a 10 percent evaluation is to be assigned for forward flexion of the cervical spine greater than 30 degrees, but not greater than 40 degrees, or combined range of motion of the cervical spine greater than 170 degrees, but not greater than 335 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or spinal contour, or vertebral facture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent evaluation is warranted for forward flexion of the cervical spine to 15 degrees or less or favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted for unfavorable ankylosis of the entire cervical spine.
After a review of all the evidence, the Board finds that the weight of the evidence demonstrates that the Veteran's degenerative arthritis of the cervical spine most closely approximates the criteria for an increase to a 20 percent disability rating for the rating period prior to December 22, 2016.
The Board notes that the Veteran's March 2011 VA examination, VA and private treatment records for the initial rating period prior to December 22, 2016, and a May 2015 Disability Benefits Questionnaire completed by the Veteran's private medical provider, did not provide actual measurements of the Veteran's range of motion. However, these records indicate that the Veteran had decreased or abnormal range of motion, pain and tenderness to palpation, and muscle spasm, without abnormal gait and spinal contour. Imaging in May 2010, August 2011, and July 2014 showed degenerative changes at C4-C5 and C5-C6. Therefore, because the Board does not know the Veteran's range of motion for the rating period prior to December 22, 2016, whether the Veteran does or does not meet the range of motion criteria for a 20 percent disability evaluation cannot be fairly determined. However, the Board notes that the Veteran had symptoms consistent with a 20 percent disability evaluation.
Likewise, the Board acknowledges that the exact date as to when the Veteran's range of motion worsened such that the Veteran met the criteria for a 20 percent disability evaluation on the basis of limitation of motion cannot be ascertained. The Board notes that the Veteran's reduced range of motion was shown at the next VA examination in December 2016 and again in October 2017 (flexion to 30 degrees, extension to 30 degrees, lateral flexion to 35 degrees on the right and left, rotation to 60 degrees on the right and 50 degrees on the left), but points out that finding that the Veteran's degenerative arthritis of the cervical spine worsened on the date of the December 2016 examination and not in the interim time period between the Veteran's initial claim for service connection in 2010 to the date of the December 2016 VA examination defies logic. Such a finding is incongruous with the medical and lay evidence of record; it is highly unlikely that the Veteran's degenerative arthritis of the cervical spine had not worsened at some, unknown point, prior to the December 2016 VA examination. To this point, the Board observes that the Veteran continued to assert worsening symptoms during that time frame, and symptoms other than range of motion (which was noted as decreased or abnormal upon evaluation) were consistent with the criteria for a 20 percent disability evaluation.
Thus, applying the facts to the criteria set forth above, the Veteran is entitled a 20 percent disability evaluation, but no more, for his service-connected degenerative arthritis of the cervical spine for the rating period prior to December 22, 2016.
The Board also notes that the Veteran's degenerative arthritis of the cervical spine has not been productive of incapacitating episodes for the rating period on appeal. The Veteran has not reported, and the evidence does not demonstrate, that the Veteran experiences incapacitating episodes requiring bed rest; the Veteran's treatment records do not confirm that his treating physicians noted any incapacitating episodes or prescribed bed rest, and the Veteran's March 2011, December 2016, and October 2017 VA examination reports reflect that the Veteran has not experienced any incapacitating episodes requiring bed rest.
With consideration of the provisions of Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, the Veteran was granted service connection for radiculopathy of the right and left upper extremities and assigned a separate 20 percent disability evaluation for his right upper extremity and 20 percent disability evaluation for his left upper extremity. As the Veteran is separately evaluated for his neurological deficits of his upper extremities, it is not for consideration here.
As such, the Board finds that the Veteran's degenerative arthritis of the cervical spine met the criteria for a 20 percent disability evaluation, but no higher, for the rating period prior to December 22, 2016.
Extraschedular Considerations
Extrachedular consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted.
The discussion above reflects that the symptoms of the Veteran's degenerative arthritis of the cervical spine are fully contemplated by the applicable rating criteria. As shown above, the criteria include symptoms, each of which were addressed in the VA examination reports and treatment records and which provided the basis for the disability ratings that were assigned. In any event, the evidence does not reflect that the Veteran's symptoms had an impact beyond that which is contemplated by the rating criteria. Therefore, referral for consideration of an extraschedular rating for the Veteran's degenerative arthritis of the cervical spine is not warranted. 38 C.F.R. § 3.321(b)(1).
In the absence of exceptional factors associated with degenerative arthritis of the cervical spine, the Board finds that the criteria for submission for assignment of extraschedular ratings pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
ORDER
Entitlement to a 20 percent disability evaluation for degenerative arthritis of the cervical spine is granted for the rating period prior to December 22, 2016, subject to the controlling regulations applicable to the payment of monetary benefits.
Entitlement to a disability evaluation in excess of 20 percent disability evaluation for degenerative arthritis of the cervical spine, for the entire appeal period, is denied.
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GAYLE E. STROMMEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs